Release of Hangover 2 could be delayed... after Mike Tyson's tattoo artist sues over movie's spoof version

It's a question that has few legal precedents, but is likely to become increasingly important, as more and more people get tattoos and intellectual property law tries to keep pace.

The issue will go before a judge starting Monday, as Mike Tyson's tattoo artist, S. Victor Whitmill, sues Warner Brothers for depicting a tattoo similar to the famous boxer's in the new film 'Hangover 2'.

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Ink brothers: Ed Helms' character sports a tattoo in 'Hangover 2' that parodies that of co-star Mike Tyson. But the artist who did Mr Tyson's ink is suing the movie studio for copyright infringement as a result

Parody: Mike Tyson, a cast member in 'Hangover 2', poses alongside a poster for the film at the Los Angeles premiere May 19, 2011

Mr Tyson, who has a small role in the film, as he did in the 2009 hit 'Hangover', is not named in the suit. But lawyers say the proceedings are not merely frivolous, and could possibly delay release of the much anticipated film, now set for May 26.

In the feature, actor Ed Helms reprises his character from the first 'Hangover', except this time he wakes up in a bathtub, only to discover that he has a 'real' tattoo inked over half of his face.

The ink job closely resembles the tattoo Mike Tyson famously received in 2003. Since Mr Tyson even appears in the 'Hangover' films, the tattoo is a running gag.

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On April 28, Mr Whitmill filed a motion in Federal District Court in St. Louis asking a judge to order Warner Brothers to stop using what he calls his 'tribal tattoo' in its posters or in the movie. That would effectively block the film from being released, or at least delay it until further editing.

Mr Whitmill is also seeking monetary damages for what he deemed 'reckless copyright infringement'.

Mr Whitmill used to live in Las Vegas
but currently lives in rural Missouri, where he co-runs a tattoo shop
called Paradox Studio and Gallery, which is on historic Route 66 in
Waynesville.

Suing: S. Victor Whitmill of Paradox Studios in Missouri accuses Warner Brothers of 'reckless copyright infringement' for depicting a 'tribal tattoo' in 'Hangover 2' similar to the one he inked for Mike Tyson in 2003

According to The New York Times, the lawsuit states: 'Mr Whitmill has never been asked for permission for, and has never consented to, the use, reproduction or creation of a derivative work based on his original tattoo'.

On Friday, Warner Brothers responded to Judge Catherine D. Perry in a brief, pointing out that delaying the film at this point would be hugely expensive.

The studio condemned Mr Whitmill's suit as a 'radical claim that he is entitled, under the Copyright Act, to control the use of a tattoo that he created on the face of another human being'.

Warner Brothers also argued that the film's use of the tattoo falls under 'fair use' because it parodies a very well known piece of our culture.

Part one: Ed Helms in the first 'Hangover' film in 2009, which was a box office smash

Courts have long upheld the right of artists and entertainers to mock a wide range of images and likenesses, although the rules of fair use are fluid and subject to interpretation.

The judge in the case will likely be considering such questions as what does the film say about the tattoo, does it build on it to create a unique piece of content, does it 'unfairly' profit off the artist's original, etc.

Various challenges to parodies have been launched over the years, with one notable case being the 1988 U.S. Supreme Court decision against Jerry Falwell, who had sued Hustler magazine for running a parody that alleged he committed absurd sexual acts.

More recently, street artist Shepard Fairey has been embroiled in lawsuits with the AP over whether his iconic 'Hope' poster of Barack Obama constitutes fair use of a photo taken by the agency.

It's unclear how the judge will rule in the 'Hangover 2' case, though one lawyer told the New York Times he thought it was unlikely that the film will actually get delayed.

Maori art: In the 1994 film 'Once Were Warriors', several characters wear traditional Maori face tattoos

Interestingly, Mr Tyson's tattoo itself is derivative, being based on traditional Maori facial tattoos from New Zealand.

Although facial tattoos had fallen in decline there during centuries of white settlement, recent years have seen a small revival of the art.

Several characters sported dramatic facial tattoos in the acclaimed 1994 film 'Once Were Warriors,' about contemporary Maori families.

For his part, Mr Whitmill's website says of his 2,000-square foot studio: 'The gallery doubles as a walk-in portfolio, featuring all original artwork by the artists who work at Paradox so the customer can see the talent and skill available to them in hopes it will gain the trust and confidence necessary to create the very best body art'.